Special Needs Estate Planning
DURABLE POWER OF ATTORNEY
As a competent adult, you have the right to make decisions about your money, property, and business affairs and appoint a trusted person, called an attorney-in-fact, to make financial decisions on your behalf if you become disabled or incapacitated A Durable Power of Attorney is considered an alternative to Conservatorship, as giving your Attorney-in-fact the legal right to make financial decisions on your behalf can avoid the need for a Conservatorship.
A durable power of attorney is a legal document where an adult appoints a trusted person, called an Attorney-in-fact, acts as an agent to manage and protect the adult’s money, property and business affairs, when the adult becomes disabled or incapacitated, or is unable to manage his or her financial matters. The Durable Power of Attorney can also allow the Attorney-in-fact to make some decisions that are specifically laid out in the document. A Durable Power of Attorney is legally binding and can be executed without involving the Court.
In order to execute a Durable Power of Attorney in Massachusetts, you must be 18 years old, of sound mind, and under no constraint or undue influence. The law does not provide us with one legal definition or test of sound mind. Generally, an adult can execute a Durable Power of Attorney if the adult understands that he or she is giving another person the legal authority to manage his or her estate and make financial decisions on the adult’s behalf, if the adult becomes disabled or incapacitated.
A competent adult chooses a trusted person to be an attorney-in-fact (attorney) and decides what powers to give the attorney. You can give your attorney limited powers with authority to perform limited tasks like overseeing bank accounts or signing checks, or give your attorney general powers with authority to manage all financial affairs on your behalf. You choose whether the powers take effect immediately or take effect when you are unable to manage your financial affairs or become incapacitated. In executing the document, the adult should include language that makes it durable, meaning the powers are not affected by the adult’s subsequent incapacity.
HEALTH CARE PROXY
A Health Care Proxy provides protection for an individual’s right to determine the course of his or her medical care in the event of future incapacity. By using the health care proxy, an individual may appoint another person to serve as his or her agent or “attorney-in-fact” to make health care decisions for him or her if he or she becomes incapable of making those decisions on his or her own.
Under the Massachusetts health care proxy law, M.G.L. c. 201D, any competent adult who is 18 years of age or over may appoint a health care agent.
The individual who appoints the agent is called the “principal.” The principal can appoint anyone except an administrator, operator, or employee of a health care facility, such as a hospital or nursing home, where the principal is a patient or resident, unless that person is also related to the principal by blood, marriage, or adoption.
The Health Care Proxy is activated upon a determination by the principal’s physician that the principal has sustained loss of his or her capacity to make such health care decisions. The health care agent cannot act under the proxy until such determination has been made.
The appointed agent or “attorney-in-fact” will make decisions about the principal’s health care only when the principal is, for some reason, unable to make the decision.
These decisions will have the same authority as the principal’s would, if he were able to make the decision, and will be honored over those of any other person, with very limited exceptions.
However, the agent cannot act until the principal’s doctor determines in writing, that the principal lacks the ability to make health care decisions. If the principal gives his agent full authority to act, the agent can consent to or refuse any medical treatment, including treatment that could keep the principal alive.
Even after the principal’s doctor has determined that he lacks the ability to make health care decisions, if the principal objects to any decision made by his agent, the principal’s decisions will be honored unless a court determines that the principal lacks the capacity to make health care decisions.
SPECIAL NEEDS TRUST
A Special Needs Trust is an instrument for families with children with disabilities to provide ‘extras’ for their child without compromising eligibility for Supplemental Security Income (SSI), MassHealth or other public benefits. A Special Needs Trust is often the most effective way to provide security and quality of life for an individual with special needs.
Special Needs Trusts are separate legal entities that hold and distribute assets for beneficiaries (individual with special needs) in a manner that protects the disabled child’s eligibility for government proved food, clothing, and shelter benefits. The Special Needs Trust should not duplicate these benefits or be drafted as the primary source of support for the disabled, rather be supplemental in these regards.